State of traditional affairs in South Africa: Department of Traditional Affairs briefing, with Deputy Minister

23 November 2016

Chairperson: Mr R Mdakane (ANC)

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Meeting Summary

Document handed out:
Presentation on the state of traditional affairs in South Africa [awaited]

The Department of Traditional Affairs briefed the Committee on the state of traditional affairs in South Africa in the presence of the Deputy Minister. The Department highlighted that the presentation would be based on the research and findings of the work that was conducted before 2004 on the historical background of Khoi-San. The Department was working with the National Khoi-San Council and Khoi communities on the research. The Department of Justice and Constitutional Development had been dealing with the issue of the constitutional accommodation of the Khoi-San communities since 1995. The Kho-San were placed in the Constitution as Coloureds but an investigation was conducted in 1996 with regard to the history, social structure and leadership of the Griqua community as they are the majority with about 300 000 far more than the rest of the communities. There are five groups that are constituting of the Khoi-Sans and the Sans are distinct and the Khoisan consist of the Griquas, Namas, Koranas.

The Department stated that there are groups who claim an unbroken linkage with their pre-colonial past such as the Griquas and Koranas as well and these groups would usually not have any problem with the criterion that had been established for the recognition of traditional leadership. There are also revivalist traditional neo-Khoi-Sans cases who do not claim to have bloodline links to a royal past but were democratically put into positions of leadership and elected on five year basis. It is important to note that there are those who do not claim to be traditional chiefs but rather community leaders trying to revive a particular Khoi-San identity, culture and heritage in the country. The Griquas have a well documented history with regards to their earlier movements including leadership in communities and different structures. The Kho-Khois could be considered as pastoralists whereas the San community was hunter gatherers. The Traditional and Khoi-San Leadership Bill is focused on the jurisdiction areas and not constitutional boundary. A constitutional boundary could be considered as a municipal boundary which is wall-to-wall and traditional leaders fall within this boundary.

The traditional leaders are calling for the separation of the Bill, they are in support of the focus on the recognition of Khoi-Sans and this should be separated from the issues of the traditional leadership in the country. The traditional leaders are essentially canvassing in different provinces and local houses that the Bill should be separated. The traditional leaders feel like the Bill is not adequate in addressing the vacuum in traditional leadership in the country and the limited amount of power. The traditional leaders would also be raising the issue of unfairness in how they are remunerated. The issue of the decolonisation of Africa is critical important to the traditional leadership as there are always complaints that the Roman Dutch law seemed to be overpowering the African law. There are already people who are saying that the Bill would only further entrench apartheid borders but the Department was adamant that people arrived where they are even before colonialism and apartheid.

Members wanted to know if there is this continuity that the Committee is looking for as stipulated in the Bill in the Koranas or Griquas communities since they were once considered to be extinct. The Committee sought further clarity on the issue of traditional leadership jurisdiction especially since South Africa transcended from the apartheid boundaries. A Member pointed out that the Department was reinforcing the apartheid boundaries that inherently linked traditional leadership based on provinces. Some Members noted that it was clear that research had been conducted on the matter and this was assisting the Committee when conducting public hearings on the Traditional and Khoi-San Leadership Bill.

Meeting report

Briefing by the Department of Traditional Affairs

Mr Muzamani Nwaila, Director-General (DG), DTA, mentioned that there is a research that was conducted before 2004 on the historical background of the Khoi-San. The Department was working with the National Khoi-San Council and Khoi communities on the research. The Department of Justice and Constitutional Development had been dealing with the issue of the constitutional accommodation of the Khoi-San communities since 1995. The Khoi-San were placed in the Constitution as Coloureds but an investigation was conducted in 1996 about the history, social structure and leadership of the Griqua community as they are the majority with about 300 000 far more than the rest of the communities. There are five groups that are constituting of the Khoi-Sans and the Sans are distinct. The Khois consist of the Griquas,Namas, Koranas. The Sans are mainly found in Northern Cape and Cape Khois are mostly residents in the Western and Eastern Cape. The Griquas are predominantly found in the Eastern Cape, Free State and KwaZulu-Natal while the Namas are to be found in the Northern Cape. The Koranas are mainly residents of the Free State and Northern Cape. This information is useful as it connects these ethnic groups to geographical location.

Mr Nwaila highlighted that the Western Cape Khois could be considered to be a revivalist movement as this group was once considered to be extinct. There are groups who claim an unbroken linkage with their pre-colonial past such as the Griquas and Korans as well and these groups would usually not have any problem with the criterion that had been established for the recognition of traditional leadership. There are also revivalist traditional neo-Khoi-Sans cases who do not claim to have bloodline links to a royal past but were democratically put into positions of leadership and elected on a five year basis. It is important to note that there are those who do not claim to be traditional chiefs but rather community leaders trying to revive a particular Khoi-San identity, culture and heritage in the country. The Griquas have a well documented history with regards to their earlier movements including leadership in communities and different structures. The Kho-Khoi could be considered as pastoralists whereas the San community were hunter gatherers. It had been gathered that leadership within the San community was something that was negotiated at group level and often guided by certain customs that regulated certain behaviour. There was also leadership that was represented through representative councils.

Mr Nwaila pointed it out that chieftainships and other leadership positions were created for the extinct Khoi tribes and this was done in order to revive their indigenous identity. Leadership positions in this instance were either nominated by the council or elected by the community concerned. The Traditional and Khoi-San Leadership Bill is focused on the jurisdictional areas and not constitutional boundary. A constitutional boundary could be considered as a municipal boundary which is wall-to-wall and traditional leaders fall within this boundary. Any argument from people that traditional leadership are locked in a jurisdictional boundary was not correct. The Organisation of African Unity (OAU) took a resolution in 1964 and the main focus was on borders and borders are also the same as jurisdictional areas if one applied that to a particular country. The resolution was aimed at creating peace and stability within the region. The Department was not reinforcing the apartheid boundaries but keeping a pledge to the resolutions that were made in 1964. It should be clarified that indigenous and “first nation” was used interchangeable. The term “first nation” is often used to refer to those indigenous communities who had inhabited a specific territory before the arrival of colonists. Although this notion was appropriate in other parts like USA, Australia and other parts; it was inappropriate in the African context

Mr Obed Bapela, Deputy Minister, DTA, said that he was excited to see that there was now a move towards the recognition of traditional leadership of Khoi-San. It should be noted, however, that the Khoi-Sans were not a homogenous group as they are highly divided. It was understandable that there was critique as to why the Department took this long to recognise traditional leadership of Khoi-Sans. It was the responsibility of South Africa to recognise traditional leaders so as to abide to the international agreements like United Nations (UN), International Labour Organisation (ILO) and the African Union (AU). The traditional leaders were calling for the separation of the Bill, they were in support of the focus on the recognition of Khoi-Sans and this should be separated from the issues of the traditional leadership in the country. The traditional leaders were essentially canvassing in different provinces and local houses that the Bill should be separated. The traditional leaders felt that the Bill was not adequate in addressing the vacuum in traditional leadership in the country and the limited amount of power. The traditional leaders would also be raising the issue of unfairness in how they were remunerated.

The Deputy Minister mentioned that there are already concerns that the kind of democracy we have in the country was not African enough in terms of responding and resonating to the people of South Africa. The issue of the decolonisation of Africa was critically important to the traditional leadership as there were always complaints that the Roman Dutch law seemed to be overpowering the African law. There were already people who were saying that the Bill would only further entrench apartheid borders but the Department was adamant that people arrived where they were even before colonialism and apartheid. Apartheid only thrived through the rule of “divide and rule” although people were already placed into their original places.

Discussion

The Chairperson appreciated the presentation that had been made and explained that the purpose for today was merely for the Department to provide the Committee with relevant information on the state of traditional affairs in South Africa. It was clear that there was already research that had been conducted on the matter and this was assisting the Committee when conducting public hearings on the Traditional and Khoi-San Leadership Bill. It would obviously be difficult for the Committee to tell people that they should not make a presentation in these public hearings because they belonged to a different ethnic group. The public hearings would be open to everyone including those who were opposed to traditional leadership. The meeting for today was for preparation than for Members to reach a consensus on the matter. There was a total of about 300 000 Griqaus and 27 000 Namas and these were clearly small communities and they should not be causing any problem in terms of classification and recognition.

Mr K Milham (DA) said that the presentation noted that the Koranas were considered to be extinct until they revived themselves over the last 15 to 20 years. It would be important to know if there was this continuity that the Committee was looking for as stipulated in the Bill in the Korana or Griqua since they were once considered to be extinct. It would be important to know if there would be a method that would be used to determine the belonging of certain ethnic groups. It would be important for the Committee to be provided with further clarity on the issue of traditional leadership jurisdiction especially since South Africa transcended from the apartheid boundaries. It looked like the Department was reinforcing the apartheid boundaries that inherently linked traditional leadership based on provinces. In relation to the creation of geographical jurisdictions, there would be a need for the Department to ensure that local government was responsible for the delivery of service to the people. The prioritisation of service delivery for one village over another was creating a tension between democratically elected structures and the traditional structures. It was clear that the Bill was reinforcing geographic boundaries derived from the colonial and apartheid distortions of customary governance systems and this was a matter to be taken into consideration.

Mr Nwaila responded that it was always going to be complicated and complex to link people with certain ethnic groups. There was a DNA process that one would need to go through to prove any genealogical (family) linkage to a certain ethnic group. It must be highlighted that there was a decision that was taken to remove the criterion that a particular ethnic group should have an unbroken history in order to be recognised for traditional leadership. The reality is that there are indeed ethnic groups that were once extinct but managed to revive themselves and this needed to be taken into consideration in the recognition of traditional leadership. The United Nations (UN) is clear that those who are considered as truly “first nation status” should have their own government, schools, economy and set-up. The issue of self-determination is contained in the Constitution but defined in a different way. There are many Non-Governmental Organisations (NGOs), nationally, that are providing funding to ethnic group of “first nation status”.

Mr Nwaila reiterated that it would indeed be very difficult to track the linkage of a particular ethnic group although it would be much easier for the Griquas as they have a documented history. However, the same can not be said about the Koranas as they never had traditional leadership in the past and this was adding to the complexity of the matter. The Bill proposed that there should be an advisory committee with experienced people who know the history of a particular community. It must be highlighted that traditional leaders did not have any jurisdiction and could address people with cultural linkage in any province in the country. The Griquas and Koranas were nomadic in nature and therefore there were not static or based in one place and therefore this would require a different set-up of traditional leadership compared to the ones of Black people. The Bill emphasised the importance of municipal boundaries in terms of chapter 7 of the Constitution and traditional leaders all fall under this terrain. There was recognition of the fact that there would always be conflict as traditional leaders still considered themselves in accordance with jurisdiction even though they do not have the constitutional boundaries.

The Deputy Minister added that a traditional leader firstly should have a piece of land or communal land and the absence of land would result in immediate disqualification from application to be a traditional leader. The determination of identify or ethnic belonging would certainly be a difficult and complex exercise. The identification of the identity would have to be proven and this was the most difficult part to do. The Koranas, Namas and Western Cape Khoi are referred to as Khoi and this should be taken into consideration. The Constitution was very clear that there was a need to redress and take into consideration the injustices of the past. The recognition of the traditional leadership of Khoi-San was precisely part of social justice. The term “first nation” was used in cases where a particular ethnic group had been completely removed of their land and some people arrived and taken over. However, in the case of South Africa, the land still belonged to Khoi-San. It was even still debateable as to who arrived first as that history was still vague.

The Chairperson suggested that the Committee should not go into much detail as Members were still to meet various communities during public hearings. Members should conduct as much research on the history of these ethnic groups that had been discussed today so as to be adequately prepared during the public hearings.

Mr N Masondo (ANC) stated that it must be taken into consideration that every starting point in South Africa is the Constitution. The OAU is clear that the determination of boundaries is based on the colonial conquests and any deviation from this is likely to create further conflict. The focus of the Committee should be on the Bill and public hearings would really just be an opportunity to listen to what people on the ground are saying.

The Chairperson concluded that the Committee would undertake the public hearings and then sit down to finalise the report. The whole process is further complicated by the fact that the traditional leaders want to separate the Bill from traditional leadership and Members would still need to apply their mind on the decision to be taken based on that. The Committee was certainly ready to engage the communities on public hearings. Parliament would have to have people to capture the notes as this should be a proper process.